Shrimati Shakuntala Devi Vs Shri Ram Lal

Sanjay Kishan Kaul, J.

+ CM(M) No.363/2005

1. Admit.

2. At the request of learned Counsel for the parties, the petition is taken up for final disposal.

3. The petitioner filed an eviction petition u/s 14(1)(a) of the Delhi Rent Control Act, 1958 seeking eviction of the respondent-tenant on grounds of non payment of rent. The eviction petition was allowed by the order dated 18.11.2004 by the Additional Rent Controller. The respondent aggrieved by the same filed an application before the Rent Control Tribunal and in terms of the impugned order dated 28.10.2005 of the Additional Rent Control Tribunal, the judgment of the Additional Rent Controller was reversed. The petitioner consequently has filed the present proceedings under Article 227 of the Constitution of India.

4. A perusal of the orders passed by the Trial Court and the Appellate Court shows that the short controversy which arose was on account of the rate of rent. The petitioner claimed that the rate of rent was Rs.3,000 while the respondent claimed that it was only Rs 400 per month. The tenancy is an oral one created in the year 1995. The petitioner examined three witnesses. The first witness AW1 is Sh. Sunil Kumar, son of the landlord. The second witness AW2 is Sh. Deep Chand a neighbour and the third witness AW3 is Sh. S.P. Chawla. Since the tenancy was oral, testimony of all the three witnesses becomes material. The three witnesses have deposed that the tenancy was created in their presence.

5. The Trial Court on the basis of the testimony of the witnesses came to the conclusion that the rate of rent was Rs 3,000 per month and thus passed the eviction order but gave the benefit to the respondent u/s 14(2) of the said Act. The Appellate Court has, however, observed that the conclusion arrived at by the Trial court is against the weight of evidence.

6. Learned Counsel for the petitioner has drawn the attention of this Court to the impugned order where the discussion is in para 6. Insofar as the testimony of the witnesses is concerned. The Appellate Court has come to the conclusion that there is no room of doubt that all the three persons are not only reliable as being the witnesses to creation of lease and they have supported for the convenience of the parties calling them to court. There is no discussion dealing with the various aspects which these three witnesses have deposed to. A perusal of the testimony of the witnesses shows that there is categorical assertion that they were present at the time of the creation of the tenancy. Such a testimony, in my considered view, has been brushed aside by the Appellate Court only on the ostensible ground that they were witnesses for convenience.

7. Learned Counsel for the petitioner has rightly pointed out that in the absence of any lease deed or rent note such an oral testimony is the primary evidence. In this behalf, learned Counsel referred to the judgment of the Apex Court in Mahant Bhagwan Bhagat Vs. G.N. Bhagat and Others, . A similar view has been taken by the learned Single Judge of the Madhya Pradesh High Court in Kashiram Vs. State of Madhya Pradesh and Others, observing that on oral evidence is the primary evidence if a lease is not reduced into writing.

8. Learned Counsel for the petitioner contends that the Appellate Court has failed to perform its duties in scrutinizing the conclusions arrived at by the Trial Court. In this behalf, learned Counsel has referred to the judgment of the Supreme Court in Santosh Hazari v. Purushottam Tiwari (2001) SCC 179 wherein it has been observed in para no.15 as under:

15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went on trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the Trial Court. First appeal is a valuable right of the parties and unless restricted bylaw, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must Therefore reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, We would, however, like to sound a note of caution. expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of the two principles. Firstly the findings of fact bases on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial judge. As a matter of law if the appraisal of the evidence by the trial court suffers form a material irregularity or is based on inadmissible evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, The rule is ''and it is n thing more than a rule of practice'' that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is so me special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.

9. If the aforesaid parameters are applied, I am of the considered view, that the judgment of the appellate court is found wanting in satisfaction of the parameters. There is no doubt that the appellate court can always arrive at a conclusion different from that of the Trial Court on consideration of the evidence. The Supreme Court has cautioned aforesaid in case of reversal of an order by the appellate court, the two principles must be kept in mind: i) the findings of facts based on conflicting evidence arrived at by the trial court must weigh with the trial court; ii) while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. The appellate court in the present case without dealing with the testimony of the three witnesses has simply brushed aside the same even though this was the primary evidence available in the present case. In my considered view this course of action was not open to the appellate court.

10. Learned Counsel for the respondent seeks to contend that this Court is not required to re-examine the testimony in exercise of jurisdiction under Article 227 of the Constitution of India and in that behalf has referred to the judgment of the apex court in Ranjeet Singh v. Ravi Prakash 2004 Rlr 315 in which the apex court relied on the earlier judgment in Surya Dev Rai Vs. Ram Chander Rai and Others, . It is trite to say that this Court in exercise of jurisdiction under Article 227 of the Constitution of India does not sit as an appellate court nor does it seek to examine the evidence and try to derive its own conclusions in respect of the testimony of the witnesses examined by the courts below. The question, however, remains as to whether the appellate court had performed its obligations in accordance with law while scrutinizing the evidence of the Trial Court. In my considered view the appellate court failed to do so and in a cryptic manner brushed aside the testimony of the three witnesses which was the primary evidence. I am of the considered view that the impugned order of the appellate tribunal is liable to be set aside and the matter remanded back to the appellate tribunal to decide the appeal in accordance with law in view of the observations made aforesaid. Parties are left to bear their own costs.

11. The parties to appear before the tribunal on 21.08.2006.

12. The trial court record be remitted back expeditiously.

CM No.3206/2005 & CM No 6908/2005

No directions are called for on the applications. The applications stand disposed of.